Justice commissioner links EU funds to ‘rule of law’

retired and give unprecedented power to the justice minister or to the president of the republic in terms of appointments of new judges.

With Hungary we are in difficult dialogue for many years now, the latest cases include the laws on universities and the funding of civil society organisations.

People’s trust in the judicial institutions varies across different countries. In Finland, it’s one of the highest where more than 80% of people perceive the courts and judges as independent. But there are six member states where this figure is 30 percent or lower!

In all these cases, the European Commission takes action.

I understand that our actions will not be applauded by everyone. We cannot satisfy everybody, especially when it comes to such a sensitive issue. But our actions should be judged against the background of the role and the mandate the Commission has been given in the Treaties and by the European Parliament, and EU’s Member States.

If you take that into account, I think we have achieved quite a lot.

Since 2013, the EU has encouraged Member States to improve the independence, quality and efficiency of their national justice systems. This is one of the priorities of the European Semester, the EU’s annual cycle of economic policy coordination. And for certain Member States it proposes to the Council to adopt country specific recommendations.

The EU Justice Scoreboard feeds into this process. It provides a yearly comparative overview of the independence, quality and efficiency of national justice systems. It makes it easier to identify shortcomings and best practices and to keep track of challenges and progress.

Thanks to this we can observe positive trends. For instance, the judicial proceedings, in particular for civil and commercial disputes, are now shorter: in 2010, the longest [Malta] were around 850 days whilst, in 2015, the longest [Italy] were around 525 days – i.e. a decrease of almost a year.

And such progress has an impact on the investment environment: in Slovenia the improvements in the effectiveness of courts recently led the rating agency Moody’s to upgrade government bond ratings which reduced its borrowing cost.

This year the Council recommended to five Member States to improve their justice system (Hungary, Italy, Cyprus, Portugal, Slovakia).

Also, for the first time, an explicit reference to the rule of law was made in the recital of the country specific recommendations concerning Poland, endorsed by the European Council.

The EU also supports the justice systems in Member States through dedicated funding. For example, since its accession, Estonia has consistently used the Structural Funds to enhance the use of ICT in its justice system and is now seen as the front runner in e-Justice.

In the case of Romania and Bulgaria, the Commission provides tailored support to help these countries move forward with judicial reforms. Through the Cooper- ation and Verification Mechanism, Romania and Bulgaria have made important progress over the past 10 years.

In 2014, the European Commission adopted a Framework to strengthen the rule of law in Member States.

The Commission decided to apply the Framework for the first time in January 2016 as a result of the situation in Poland I described earlier. It adopted three rule of law Recommendations. The first two focused on the situation of the Polish Constitutional Tribunal. The third also addressed other concerns raised by new justice reforms affecting the independence of ordinary courts and of the Supreme Court.

The Commission remains open for dialogue with Poland. But we have probably never been so close to triggering article 7 of the Treaty that deals with systemic risks of the rule of law.

What should be done to improve the tools on rule of law in the EU?

A lot has been done, but I feel that there is room for improvement. Despite efforts undertaken to improve their justice system, we can still observe that in certain Member States the judicial system needs improvement.

The question is – is this the right moment? In short – yes. In fact upholding the rule of law has never been so high on the EU agenda as it is today. At a time when EU intervention is questioned in many spheres, the EU is requested to be more active in this new policy area.

Indeed, a new policy area. As you might have noticed, all the things related to the rule of law at the EU level are fairly new.

Until the Lisbon Treaty entered into force, so until 5 years ago, Justice was in the so called “third pillar”, meaning mainly in the governmental cooperation with a very reduced role of the EU institutions.

Given the importance of the rule of law for the EU as a block, this could sound surprising. But I was also a minister in the Czech Republic and I can understand that justice and security is something that any government would very jealously protect.

So, it is an amazing achievement and a sign of bravery for all the leaders who signed the Lisbon Treaty. The Treaty tore down the pillars and equipped the EU with the new competence in the justice area.

But, some of those competences are not clear enough or not bold enough. We all know that the EU projects need time before they can come to fruition. Whether it’s single market, Eurozone or the Banking Union, time was needed to make it a reality. Faced with the crisis, EU leaders can find compromise on the most difficult issues.

Luckily, there is no such a comprehensive crisis in the justice area across the whole EU, but I hope we learnt something from the past, and we are ready to act when we see important symptoms.

The rule of law is also integral to our external relations. President Juncker told the European Parliament in September that “If we want more stability in our neighbourhood […] then countries must give the rule of law, justice and fundamental rights utmost priority“.

We need stronger cooperation with our direct neighbours and beyond to succeed in the fight against illegal migration, trafficking and terrorism. And we have a strong interest in the political stability and economic prosperity of our partner countries. All this requires that the justice systems in the third countries concerned comply with the rule of law.

Let me share with you some personal thoughts on some aspects which in my view deserve further reflection.

First, we should in my view ensure that the justice reforms are the right ones!

I mean reforms which reinforce the rule of law and fully comply with European standards on judicial independence.

A well-functioning justice system is closely linked with the environment to do business. I believe we should consider creating a link between the European Semester and the criminal justice system. This is important in particular for the fight against corruption which is a condition for a businessfriendly environment. Also effective criminal justice systems are crucial for the sustainability, trust and legitimacy of the EU security policy and the fight against terrorism.

Second, I think the time has come to develop a broader perspective and to have the difficult conversation about how to better uphold the rule of law in the EU.

I understand this task will not be easy, but if we want to be credible and efficient, we need a common understanding of how best to uphold the rule of law.

Therefore - picking up on ideas put forward by the European Parliament - I believe we should promote a wide discussion involving the European Parliament and national parliaments to work towards a common understanding on how best to uphold our common values, at national and at European level.

In this context I would be in favour of an event to discuss how best to operationally uphold the rule of law in the EU and to explore how the EU can better promote the rule of law at national level, for instance through some form of Action Plans.

Let me be clear, this is not aimed at any specific country. This work will take time and will not help us to solve the current issues.

But if we know now where the boat is leaking today, we should at least prevent it from breaking in the same place in the future.

Third, I have said earlier that we need to make better use of EU funds for upholding the rule of law. The Commission reflection paper on the future of EU financing published in this year says that ‘Upholding EU core values when developing and implementing EU policies is key’. It further argues that ‘There is hence a clear relationship between the rule of law and an efficient implementation of the private and public investments supported by the EU budget.’

In my personal view we should consider creating stronger conditionality between the rule of law and the cohesion funds.

Countries where we have doubts about the rule of law should face tougher scrutiny and checks. We are currently discussion the next financial framework, and I would want to bring this into the debate.

And, it is not just an issue for structural funds. I see it more as a general rule for all EU funds. This work should maintain: Impartiality so they should take into account all good solutions across Europe

Neutrality – so we don’t favour any ideological trends in Europe

Sustainability – the solutions should be thought in long-term and general, not tailored for any particular case.

In sum, the lady justice is blind, and must remain blind. It doesn’t matter what ideological colour the government has. Conservatives, liberals, socialists, populists – nobody is immune from temptations to tinker with the rule of law.

And our actions must be legitimate. That’s why we cannot do it alone. It should be shared responsibility of all EU institutions and Member States.

We should also rely on experience of other bodies such as Council of Europe who developed its own expertise in assessing the rule of law situations in its member countries.

All this should lead us to something President Juncker announced in his State of the Union speech - an Initiative to strengthen the enforcement of the Rule of Law in the European Union in the 2025 perspective. First VP Timmermans is leading this work, and I hope my personal ideas you have heard today can feed into this process.

We must end the fragmentation of doing certain things in the semester, some others in the CVM mechanism and some other in the context of the rule of law dialogue.

I personally believe we need one, ambitious and consolidated rule of law mechanism.